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1. BELGIUM -

A mandatory "contribution to administrative costs" with regard to certain foreigners' requests for residence authorization took effect on March 2, 2015.

2. CANADA -

There are new employer compliance requirements before applying for certain Canadian work permits. Also, criminal inadmissibility under Canadian immigration law is summarized.

3. CHINA -

New procedures for short-term work took effect recently.

4. ITALY -

Several developments have been announced.

5. MALTA -

The first Malta citizenship-by-investment approvals have been issued.

6. NETHERLANDS -

There have been recent developments in permits for entrepreneurs and investors.

7. TURKEY -

There have been recent changes in Assembly, Maintenance and Service visas.

8. UNITED KINGDOM -

Several developments have been announced.

9. New Publications and Items of Interest -

New Publications and Items of Interest

10. Member News -

Member News

 

 
 
1. BELGIUM
 

A mandatory "contribution to administrative costs" with regard to certain foreigners' requests for residence authorization took effect on March 2, 2015.

The Belgian federal government has introduced a mandatory "contribution to administrative costs" for certain foreigners' requests for residence authorization. The government said this measure, effective March 2, 2015, was justified due to a continuous increase in the number of such applications and the resulting workload.

A related law was approved on December 19, 2014. Before the levy could take effect, it had to be implemented by means of a Royal Decree. The Royal Decree was approved on February 16, 2015, and took effect on March 2, 2015.

Most foreigners must pay a fixed amount to file a first (not renewal) application for residence authorization, either abroad through a Belgian embassy or consulate (visa D application), or directly in Belgium, without prior visa D (residence permit application). Several types of foreigners (e.g., those from the European Economic Area, Swiss citizens and their family members, and minors) are exempt.

The levy must be paid by, e.g., work permit holders (€215) and most of their family members (€160), students (€160), some researchers (€215), and Blue Card applicants (€215). The levy must be paid before filing the application. The communication must note the last and first name(s) of the applicant, his or her date of birth, citizenship, and the motive for residence in Belgium.

Proof of payment of the levy must be submitted as part of the residence application. If no proof of payment is submitted, the application will be declared inadmissible. If the payment was only partial, the applicant will have 30 days to pay the full levy.

 
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2. CANADA
 

There are new employer compliance requirements before applying for certain Canadian work permits. Also, criminal inadmissibility under Canadian immigration law is summarized below.

New employer compliance requirements for certain Canadian work permits. Effective February 21, 2015, amendments to Canada's Immigration and Refugee Protection Regulations require Canadian employers to first submit employer compliance information and an additional fee before submitting certain Work Permit applications. This new required "first step" applies to employer-specific Work Permit applications based on a regulatory exemption to the regular Labour Market Impact Assessment (LMIA) process. Citizenship and Immigration Canada (CIC) claims this change is necessary to reinforce integrity within the International Mobility Program by making the employer compliance scheme more rigorous.

Employers must now proactively provide their offer of employment made to a foreign national in support of an LMIA-exempt Work Permit directly to CIC via the new IMM 5802 form—"Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)." The new employer compliance fee of $230, levied to fund employer compliance inspections, must first be paid online to CIC to generate the fee receipt number required for insertion on the new IMM 5802 form. Once the IMM 5802 form has been duly completed—including the fee receipt number, information regarding the employer, primary employer contact information, details of the job offer, foreign worker information, and the employer's signature—the applicant must send it to the designated email address. Employers should ensure that the form is accurately completed to avoid Work Permit refusals.

Upon payment of the $230 employer compliance fee and completion of the IMM 5802 form, the foreign national can then apply for the LMIA-Exempt Work Permit together with appropriate submissions, supporting documents, and the Work Permit processing fee of $155. In a case where the pre-approval of a Work Permit application is being sought for an International Mobility Worker Unit in Canada, it would be prudent to include the IMM 5802 form and $230 employer compliance fee receipt. If an accompanying spouse of the LMIA-exempt foreign national applies for an open spousal Work Permit, an additional new fee of $100 will apply in addition to the Work Permit processing fee of $155 for the spouse.

Employers that do not adequately follow the first compliance step or do not pay the employer compliance fee will find their Work Permit applications refused. Where an employer-specific, LMIA-exempt Work Permit application is refused due to concerns about the genuineness of the job offer, the $230 employer compliance fee will be refunded to the employer.

Criminal inadmissibility under Canadian immigration law. Regardless of their purpose for coming to Canada, foreign nationals must be admissible to come to Canada under Canada's Immigration and Refugee Protection Act (IRPA). Among the most common grounds of inadmissibility to Canada are serious criminality and criminality.

With regard to a foreign offense, serious criminality means having been convicted of an offense outside Canada punishable by a maximum imprisonment term of at least 10 years. "Regular" criminality with regard to a foreign offense means having been convicted outside Canada of an offense that would be considered an indictable offense in Canada or of two offenses that would be considered Canadian offenses. Indictable offenses are more serious, whereas summary conviction offenses are more minor. Where offenses in the Canadian Criminal Code can be prosecuted by way of summary conviction or by indictment, they are "hybrid" offences. Under Canadian immigration law, hybrid offenses are deemed to be indictable offenses that trigger criminal inadmissibility.

Counsel should perform a criminal equivalency analysis to assess whether a foreign national may be inadmissible to Canada by comparing the essential elements of the foreign offense with possible equivalent Canadian offenses. If there are reasonable grounds to believe that a foreign national was convicted of the equivalent of a Canadian indictable or "hybrid" offense, the foreign national will be criminally inadmissible.

Many foreign nationals are inadmissible to Canada due to a past conviction for driving under the influence of alcohol (DUI). If the foreign DUI conviction is equivalent to a conviction for the hybrid Canadian offense of "operating while impaired," he or she will be inadmissible. If the foreign DUI conviction is equivalent to a pure summary conviction offense in Canada or a Canadian provincial highway code infraction, then he or she will be admissible.

Some foreign court dispositions do not amount to convictions in Canada and do not trigger criminal inadmissibility. An "expungement" in a U.S. state does not equate to a conviction in Canada because the charges are obliterated. Similarly, an "acquittal contemplating dismissal," "deferral of conviction," "deferral of prosecution," and "nolo prosequi" in a U.S. state do not equate to a conviction in Canada. The greatest opportunities for avoiding criminal inadmissibility often exist before a foreign national is convicted where a foreign national is negotiating a plea bargain.

Where a foreign national is criminally inadmissible to Canada, it is important to consider eligibility for criminal rehabilitation. Deemed rehabilitation applies to an indictable offense where 10 years have elapsed since the day of completion of the sentence, whereas for summary conviction offenses, the period is 5 years. For rehabilitation upon application, a foreign national must wait to apply until at least 5 years from the time the last component of the sentence was completed, whether it was a fine, imprisonment, parole, probation period, or driver's license suspension.

It may be possible for an otherwise criminally inadmissible foreign national to apply for a temporary resident permit to visit Canada, if a justifiable reason to visit Canada exists and the individual is unlikely to reoffend. The application should include substantial supporting documentation.

For more information, see "Criminal Inadmissibility Under Canadian Immigration Law," available at http://gombergdalfen.ca/publications/Criminal_Inadmissibility.pdf.

 
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3. CHINA
 

New procedures for short-term work took effect recently.

On January 1, 2015, Handling Procedures Related to Entry of Foreigners for Short-Term Work Tasks (for Trial Implementation) took effect. The procedures provide guidelines for implementing the 90-day work permit rule under China's new exit-entry law and regulations. The procedures define "short-term work" and clarify the visa, work permit, and residence permit application requirements and procedures for foreign nationals entering China for short-term employment purposes.

Work Permit Requirements for Short-Term Work

Under the procedures, foreign nationals who intend to participate in the following activities in China for up to 90 days must apply for a work permit:

  • Visiting a cooperating partner in China to complete work in connection with technology, scientific research, management, and provision of guidance;
  • Physical training in a sports agency (applicable to coaches and athletes);
  • Shooting a film (including commercials and documentaries);
  • Participating in a fashion show (applicable to runway or print models);
  • Participating in a foreign commercial performance; and
  • Other activities specified by the labor administration authority.

In addition, the procedures also require foreign nationals to apply for a work permit to undertake the following short-term work if they intend to stay for more than 90 days per entry:

  • Providing maintenance, assembly, testing, taking apart, guidance, or training for purchased equipment or machines;
  • Providing guidance, supervision, or inspection of a project that won a bid;
  • Short-term assignment to a subsidiary, branch office, or rep office;
  • Participating in sports events held in China (applicable to athletes, coaches, team doctors, and assistants);
  • Volunteering without pay or paid by overseas organizations; or
  • Providing performances that are not defined as "foreign related commercial performances" in China.

Foreign nationals entering to participate in the above events for fewer than 90 days are exempt from the work permit requirement, and can enter on an M visa (for the first four types of activities) or an F visa (for volunteers and performers).

A major impact of the procedures is on foreign nationals coming to China temporarily to perform contracts with a Chinese entity. Before the procedures, generally foreign nationals could enter with a business visa for visits of 90 days or fewer. A work permit was only required for visits longer than 90 days. Under the procedures, foreign nationals visiting a Chinese entity for fewer than 90 days to complete work in connection with a contract must obtain work authorization, unless the purpose of their visit falls within one of the exemptions listed above. As these procedures are implemented, we will learn more about how the government will handle cases that fall within a "gray area," where it isn't entirely clear whether an exemption applies. For now, it is advisable to err on the side of caution and obtain a work permit to avoid difficulties that could compromise a project.

Work Permit Application

The procedures also clarify the application process and document requirements for short-term work permit applications. For foreign nationals whose working period is no more than 30 days, an employment license, "Approval for Short-Term Employment for Foreigners Working in P.R. China," and a Z visa must be obtained. The hosting entity must first apply for the employment license and the approval at the local labor bureau, and then apply for a Z visa invitation letter. The foreign national must then apply for a Z visa to enter China. He or she will receive a Z visa for 30 days with a note, "Allowed to work only within the period of time indicated in the approval."

For those whose engagements are more than 30 days, there is one more step. After the above steps, they will receive a Z visa with a note to apply for a 90-day resident permit upon entry. They must obtain the resident permit accordingly.

The procedures also provide detailed work permit requirements for participants of sports events in China and participants in performances not categorized as foreign commercial performances by the culture authority.

Foreign nationals entering China for short-term employment cannot remain in China beyond the period noted in their approval of short-term employment, and the approval cannot be renewed unless they intend to be employed by a Chinese entity during their stay.

There are still issues to be clarified by Chinese government authorities. Employers should pay close attention to implementation of the procedures regarding these issues.

 
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4. ITALY
 

Actors and members of TV and film crews going to Italy for less than 90 days do not need a visa and can enter Italy as business visitors. According to the Ministry of Foreign Affairs (MoFA), actors and members of TV and film crews (non-visa nationals) do not require a visa and can enter Italy as "business visitors" if their stay does not exceed 90 days in a period of 180 days. Visa nationals can work while obtaining a business visa (see http://www.esteri.it – "visa page").

The Ministry of Labor (MoL) has a different policy and requires that all foreign workers—despite the duration of their stay and the fact that they continue to be paid abroad and are not hired by the Italian host company—obtain a work permit and a work visa to legitimately work in Italy.

The MoL coordinates inspections at work sites, and it is therefore risky (until a clarification is issued by both the MoL and MoFA) to avoid obtaining a work permit for any non-European Union workers involved in the filming.

Italian naturalization at the age of 18 cannot be denied due to parents' negligence. The Milan Court reconfirmed on January 29, 2015, that the denial of an Italian citizenship application—filed pursuant to Article 4/2, Law n. 91/1992, according to which citizenship is granted to individuals born in Italy who have legally resided in Italy until the age of 18—is not legitimate whenever the applicant was not registered as an "Italian resident" by the parents at the time of birth. The court ruled that the applicant cannot be held liable for delays attributable to the parents and is entitled to citizenship if he or she can prove to have legally lived in Italy without any interruptions.

EC residence permit for a long-term resident can be revoked only under serious circumstances. The Lombardy Administrative Court stated with verdict No. 128/2015 that an EC residence permit for a long-term resident—issued pursuant to Article 9, Legislative Decree July 25,1998, no. 286 (immigration consolidated law)—cannot be revoked if the holder no longer has a job and does not reach the minimum income required by law. The EC permit can only be revoked for public security reasons due to the holder's "pre-criminal" danger to society.

 
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5. MALTA
 

The first Malta citizenship-by-investment approvals have been issued.

In November 2014, the first Malta citizenship approvals were issued to applicants for Maltese citizenship who had applied under the Malta Individual Investor Programme (MIIP) in February 2014. At that time, the first participating law firms obtained their licenses to handle citizenship applications under this program from Identity Malta, the agency responsible for managing Malta's Citizenship by Investment program. The first Maltese law firm to be accredited, Chetcuti Cauchi Advocates, is reported to have submitted the first applications under what had been announced as the pilot phase of the Malta Citizenship by Investment program and recently announced the first "in principle" approvals.

What is the statutory processing time for Malta citizenship applications?

After 90 days from the submission of the application by the approved agent, Identity Malta issues its first approval confirming that it has verified the source of funds and the information supplied as part of the application. Identity Malta also uses independent due diligence agents in applying a risk weighting exercise. The MIIP Rules stipulate a maximum of four months for issuance of a final approval.

What is the effect of an approval?

An "In Principle Approval" is a letter issued by the Identity Malta Agency certifying the approval of the citizenship application and confirming the applicant and his or her dependents' right to a Maltese passport subject only to fulfilling the contribution and investment criteria agreed to by the applicant. The main conditions of these Malta Citizenship approvals are listed below.

What steps are required for Maltese citizenship?

Requirements include:

  • Paying a non-refundable contribution to the Malta Social & Economic Development Fund: €650,000 less the €10,000 already paid on application; i.e., €640,000
  • Purchasing or renting property subject to the minimums established by the rules (€350,000/€16,000 per year)
  • Investing €150,000 in government bonds;
  • Holding Global Health Insurance; and
  • Satisfying the residency requirement (as already confirmed and pre-approved by Identity Malta at the outset of applicant's residency)

What is the time frame for issuance of a Maltese passport?

Malta citizenship approvals indicate the time frames allowed by law for executing the commitments undertaken by an applicant on submitting his or her application through its approved agent. The contribution must be paid within 20 days. Compliance with the investment and other ancillary conditions must be achieved within 4 months.

Applicants who have received their Malta citizenship approvals are entitled to passports. However, those who have not yet satisfied the "genuine link" requirement (referred to as the residency requirement) for one full year must wait for that amount of time to elapse before claiming their Maltese passports. Applicants who have been residing in Malta for a one-year period can claim their Malta passports after six months from the date of application for Maltese citizenship.

 
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6. NETHERLANDS
 

There have been recent developments in permits for entrepreneurs and investors.

A report from the State Secretary of Justice Fred Teeven (recently replaced by Klaas Dijkhoff for reasons not related to immigration policy) revealed the dramatically low success rate of the general permit scheme for entrepreneurs in recent years. On the positive side, two new category-specific entrepreneur schemes showed signs of life: the immigration scheme for start-up companies was kicked off with a bang effective January 1, 2015. The first-ever start-up permit was granted as early as the beginning of February. A few weeks later, in March, the "pure" investor scheme followed with its first-ever approved application. The latter scheme was introduced in 2013 but no applications were granted until now.

General Scheme for Entrepreneurs

The general entrepreneur scheme is mainly based on a business plan and financial forecasts. Points can be earned for (1) personal experience, (2) the business plan, and (3) added value for the Netherlands. The Dutch Ministry of Economic Affairs allocates the points.

The State Secretary noted that approximately 1,000 entrepreneur visa applications per year are submitted to the Immigration Service (IND). Ninety percent of this number are from Turkish nationals, and "almost all of these applications are rejected." The remaining 10 percent of applications are from Japanese, United States, and other third country nationals. Applications of Japanese and U.S. nationals are based on the Friendship and Trade Treaties and in principle always granted. The Ministry has not yet provided exact figures due to IT problems.

“Pure” Investors Scheme

The investor scheme, introduced in 2013, targets wealthy individuals who invest 1,250,000 euros in a Dutch company. Various methods are available, including a simple cash transfer to a Dutch bank account. A Dutch accounting firm with an international profile must declare the invested funds to "not be of illicit origin." To check the financial information provided, the Dutch Financial Intelligence Units may contact authorities in the country of origin. The invested amount must add intrinsic value to the Dutch economy. Such added value is assumed if the investment is in a government-recognized seed fund, or in a private equity fund that is a member of the Dutch association of private equity funds. In other cases, the Dutch Ministry of Economic Affairs is called upon for an assessment of the intrinsic value.

Only a handful of applications were filed in 2013 and 2014, and none were granted in those years. The first successful application was submitted in October 2014 and was approved on March 18, 2015.

Startup Visa Scheme

The startup visa scheme was introduced in 2015. A startup visa can be issued to the owner(s) of startup companies that have been selected by and have signed a contract with a Dutch facilitator that offers support with setting up and growing new businesses. The facilitator must have an IND-approved track record; i.e., have accompanied startups already for at least two years and be in a good financial situation. The startup must substantiate that its product or service is innovative. All persons participating in the startup (e.g., as shareholders) are eligible for this visa. The startup visa is granted for one year and cannot be renewed.

The first application was filed on January 1, 2015, and was granted within five weeks. During that time, first the facilitator's track record was approved and then the application of the startup was granted. In essence, the IND proved to be able to move very fast under this scheme.

Kroes Advocaten has been actively involved in policymaking toward the startup scheme. Both the first-ever startup permit and the first-ever investor permit were granted to clients of the firm.

 
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7. TURKEY
 

There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

Turkey amended its work permit regulations in January 2015 with respect to Assembly, Maintenance and Service (AMS) visas. An AMS visa is a short-term (90-day) technical work visa for foreign employees, under certain conditions, to engage in assembly, maintenance, service, or technical training work for the benefit of a Turkish company without the need for a work permit. This visa is a very practical category for many companies in the technology, construction, and energy sectors because it generally has a very low documentary burden and is adjudicated solely at the consular post, most often within a few days.

Historically, the problem with this visa category was twofold: (1) the 90-day period was calculated consecutively within a year and (2) the visas were generally issued as single entry. Therefore, unless an assignee remained in Turkey for the entire 90-day period uninterrupted, the full 90 days per year could not be used.

On January 22, 2015, the work permit regulations were changed to state that AMS visa holders can remain for up to three months in total within a year. And the regulations now allow foreigners with an AMS visa to enter Turkey on multiple occasions provided that they do not remain in Turkey more than three months in total within a year.

The change in the wording of the regulation appears to convey that the 90-day period is now calculated cumulatively over the period of a year, not consecutively. It also states that these visa holders should be granted multiple entries, which is welcome news regardless of the calculation of the 90 days, particularly since the vast majority of consular posts issue single-entry AMS visas.

In the meantime, it is best practice to provide a copy of the legal changes to the consular post when applying for an AMS visa in order to insist that consular posts follow this regulatory change and grant one-year multiple-entry AMS visas. However, the calculation of the 90-day period (cumulative vs. consecutive), is in the hands of the passport officers at entry points to confer later entries for AMS visa holders whose period is beyond 90 days consecutively (yet have not been present in Turkey for 90 days cumulatively). AMS visa holders should anticipate that some consular officers and passport officers will not have full awareness or knowledge of this legal change for some time.

 
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8. UNITED KINGDOM
 

Several developments have been announced.

NHS Health Surcharge Introduced on April 6

The Home Office announced that a planned National Health Service (NHS) surcharge was implemented on April 6, 2015. This applies to all non-European Economic Area (EEA) migrants applying for permission to enter the United Kingdom (UK) for more than six months and to those migrants wishing to extend their existing limited leave to remain within the UK. The surcharge is £200 per annum per applicant, payable in full at the application stage, for all migrants except students, for whom the charge is £150 per annum.

This represents a huge increase in upfront costs payable by migrants. For example, a migrant with three dependents applying for a Tier 2 (General) visa for the maximum period of 60 months must pay an additional £4,000, on top of the usual visa fees.

Updates Released on the Roll-Out of Biometric Residence Permits for Overseas Applicants

As the general election draws closer, immigration advisers all over the UK are watching closely to see what the current coalition government will do and whether they will try to implement any changes to the current immigration system. No significant changes are expected.

The Home Office has introduced Biometric Residence Permits (BRPs) for overseas applicants. BRPs for non-EEA nationals traveling to the UK for more than six months have begun to be issued, starting with applications made in Pakistan as of March 18, 2015. The roll-out is continuing in three further phases from mid-April (including China and India), end of May (including Australia, the United States, and Japan), and end of July (the rest of the world). The following details have been released:

  • Family members should be able to collect BRPs for each other if they can present the passport and decision letter for each applicant;
  • Once in the UK, applicants are able to ask that their BRP be sent to a different Post Office than originally specified, but there is a charge for this service, although it can be nominal;
  • Provisions may be introduced for nominated university staff to collect BRPs on behalf of a group of students, and then hand out the BRPs on campus, to avoid the Post Offices becoming overwhelmed in peak times; and
  • The BRP is the only evidence of the grant of leave. The applicant must therefore obtain it before he or she can start work or classes.

An opportunity to amend or abolish Police Registration? Every year, the Overseas Visitors Records Office (OVRO) is overwhelmed in September, with international students and many secondees making their move at that time of year. This year OVRO ran a system that required individuals to attend (and queue) twice: once within the seven-day deadline to obtain an "appointment slip" and again on the date of the appointment.

With the introduction of BRPs, Police Registration nationals are expected to obtain their BRPs in person from the Post Office and then also to visit OVRO. As the Home Office is happy for the Post Office to oversee the collection of fingerprints (mandatory for most applications to remain in the UK) and the distribution of BRPs to new arrivals, outsourcing Police Registration would be the logical next step so that multiple visits to different locations would no longer be necessary and the process could be streamlined to require only one visit to the Post Office. Even better, it has been suggested that Police Registration should be abolished, now that almost all migrants will have BRPs. Either way, the administration-heavy current process needs to be reconsidered.

The Home Office released related guidance at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/414184/v_8_overseas_BRP_leaflet_-_signed_off_v_2__with_correct_image_.pdf. See also https://www.kingsleynapley.co.uk/news-and-events/blogs/immigration-law-blog/biometric-residence-permit-international-rollout-schedule.

Passport Checks on Leaving UK Introduced at Eurotunnel and Ferry Ports

Effective April 8, 2015, Eurotunnel and all ferry operators must scan the passports of those leaving the UK and send this information to the Home Office. The government is piloting some exemptions, such as coach tours and in situations where there are big delays; companies may relax controls with advance approval from a minister.

The exit checks are being reinstated following their demise in 1994. To avoid delays, airlines already obtain advance passenger information (API) and submit this information to the Home Office, so there is no change at UK airports. Eurotunnel is also introducing API in April to help reduce delays, and it is hoped that the ferry companies will follow suit.

Home Office Announces Changes to Immigration Rules

On February 26, 2015, the Home Office published its latest statement of changes to the immigration rules, with most of the provisions effective April 6, 2015. Filing fees for applications made within the UK and overseas increased on that date. In some categories, such as Tier 1 (Investor), the level of the fee doubled.

Notable changes include:

Visitors

  • The Visitor Rules effective April 24, 2015, have been simplified.
  • Currently, there are 15 separate visitor categories, each with its own set of requirements. Following extensive consultation and feedback from interested bodies, the Home Office streamlined the visitor categories into just four visitor categories: visitor (standard), visitor for marriage or civil partnership, visitor for permitted paid engagements, and transit visitor.
  • The student visitor category has been subsumed within a new short-term study category outside of the Visitor Rules.
  • The "parent of a child at school" category has been rebranded as "parent of a Tier 4 (child) student" and taken outside of the Visitor Rules.
  • Under the visitor (standard) category, all visitors can carry out permitted activities that were not originally declared on their visitor visa applications, although they may be required to provide additional information if requested by immigration officers on entry into the UK.
  • The list of permitted activities has been expanded to include:
  • Incidental volunteering for up to 30 days at a registered UK charity.
  • Employees of an overseas training company delivering global training to employees of a multinational company based in the UK.
  • Allowing training in specialist UK work practices and techniques to be delivered by non-corporate organizations.
  • Expanding the current provision for overseas lawyers to advise UK clients on litigation and international transactions to include lawyers who are not employed by an overseas multinational company.

Other significant changes to the rules include:

  • Addition of the ability for caseworkers to require persons present in the UK with limited leave to provide evidence and/or attend an interview to demonstrate that they continue to meet the requirements of the immigration rules.
  • Limiting approved English language tests to Trinity College and Cambridge IELTS tests. The tests provided by Pearson and City and Guilds were removed as of April 6, 2015.

Tier 1 (Investor)

  • Tier 1 (Investor) initial applicants must open UK-regulated bank accounts before submitting their applications.
  • The minimum age for migrants in this category has increased from 16 to 18.
  • The attempt to remove the "topping up" requirement in the November 6, 2014, Rule changes is refined to provide that Tier 1 investors no longer need to invest additional funds if they sell investments that have decreased in value; they need only reinvest the sale price of the investments to maintain the minimum £2 million investment. However, this equally means that investments sold at a gain must be reinvested in the UK.

Tier 1 (Entrepreneur)

  • The use of the "genuineness" tests in the Tier 1 (Entrepreneur) route to applications for extensions and indefinite leave to remain is expanded. This change is similar to the "genuine entrepreneur" test introduced for initial applications in January 2013. In addition, the submission of business plans for initial applications is now mandatory.
  • Applicants relying on funds they hold themselves must provide evidence of the third-party source of those funds, if they have held the funds for less than 90 days before making an initial application.
  • The rules regarding how investment funds may be spent to satisfy the £200,000 investment requirement are clarified. The changes make it clear that buying a business from a previous owner, where the money ultimately goes to that previous owner rather than into the business, will not be acceptable.

Tier 1 (Exceptional Talent)

  • Tier 1 (Exceptional Talent) migrants previously were granted leave to enter/remain for five years. As of April 6, 2015, such applicants now may choose the period for which they wish to be granted leave to enter/remain in one-year increments (up to the maximum five years/five years, four months). This change was introduced to prevent Tier 1 (Exceptional Talent) migrants intending to be in the UK for shorter periods to be subject to the new NHS surcharge for the maximum period.

Tier 2

  • Scheduled annual updates to minimum salary thresholds to qualify for Tier 2:
  • Tier 2 (General): now £20,800.
  • Jobs exempt from advertising in Jobcentre Plus: now £72,500.
  • Jobs exempt from the annual limit, 12-month cooling-off period, the Resident Labour Market Test, and transfers of up to nine years (ICT): now £155,300.
  • Tier 2 (General) and Tier 2 (Sports-person) earnings that qualify for settlement: £35,800 for settlement applications made on or after April 6, 2019, and £36,200 for those made after April 6, 2020.
  • Tier 2 (Intra-Company Transfer) Short-Term, Skills Transfer, and Graduate Trainee categories: now £24,800.
  • Tier 2 (Intra-Company Transfer) Long-Term: now £41,500.
  • No increase to the annual limit on Tier 2 (General) Restricted certificates, which remains at 20,700 but is rebalanced to increase the number of places available at the start of the limit year in April from 1,725 to 2,550.
  • A change to the cooling-off period restrictions, which do not apply to those applicants who were previously granted Tier 2 leave of three months or less. This will help sponsors who need to transfer key staff for very short periods rather than to fill ongoing vacancies in the UK.
 
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9. New Publications and Items of Interest
 

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide "first-rate" and said the key strong point of the book is its "outstanding usability."  She said she highly recommends the book and notes that it "is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management."

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes "the fact that the [guide] focuses not just on each country's immigration law itself but also addresses related matters such as tax and social security issues."  She noted that the India chapter "is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges."

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is "an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand."

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL's attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

 
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10. Member News
 

The Alliance of Business Immigration Lawyers (ABIL) was ranked as Band 1 in the category of "immigration (legal networks)" in the 2015 Chambers Global directory. ABIL's listing is HERE. FOR MORE INFORMATION ON THE DIRECTORY

Various ABIL members were named to Human Resource Executive's "Most Powerful Employment Attorneys" list in the immigration field for 2015. The list will be featured in the June 16, 2015, issue. The magazine states that only those who earn "glowing marks from clients, peers, colleagues and judges are awarded the distinction."

Several ABIL members spoke at IIUSA's 8th annual EB-5 Regional Economic Development Advocacy Conference in Washington, DC, on April 12-14, 2015:

  • Angelo Paparelli and Stephen Yale-Loehr spoke on USCIS Policies: Latest Adjudication & Processing Trends for EB-5 Petitions/Applications.
  • Bernard Wolfsdorf will speak on Visa Retrogression in 2015: Latest Demand Data, Practical Insights & What Comes Next.

FOR MORE INFORMATION

Several ABIL members spoke at an Invest in America summit in Shanghai, China, on March 14 and 15, 2015. H. Ronald Klasko and Mr. Wolfsdorf spoke on visa retrogression in the EB-5 category. Mr. Yale-Loehr moderated a panel on due diligence issues in the EB-5 program.

Several ABIL members spoke at an Invest in America Summit in Shenzhen, China, on March 18 and in Beijing on March 21, 2015. Mr. Klasko spoke on EB-5 "hot topics" in Shenzhen and due diligence issues in the EB-5 program in Beijing. Mr. Wolfsdorf spoke on due diligence issues in the EB-5 program in Shenzhen and on EB-5 "hot topics" in Beijing. Mr. Yale-Loehr spoke on targeted employment area issues in the EB-5 program in Shenzhen and on EB-5 visa retrogression issues in Beijing.

Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.

Kingsley Napley held a Spring Update Seminar on April 23, 2015, starting at 4 p.m. Topics included Tier 2 salary thresholds and English language changes; genuineness test; business visitor category changes; overseas biometric residence permits; and immigration after May 7. MORE INFORMATION

Mr. Klasko was quoted in Voice of America News in a report on the EB-5 immigrant investor program. Mr. Klasko said the EB-5 program was less likely to bring terrorists or criminals into the United States than any other immigration program. "There are about seven or eight different levels of review within [U.S.] Citizenship and Immigration Services, within the Department of Homeland Security and within the U.S. Department of State that EB-5 investors have to go through," he noted.

Klasko Immigration Law Partners held its 11th annual Spring Seminar, "Immigration 2015: Hope Springs Eternal," on Wednesday, April 22, 2015. FOR MORE INFORMATION

Over 100 members of the real estate development, regional center, and general EB-5 communities attended Klasko Immigration Law Partners' first annual EB-5 marketing and compliance seminar in Philadelphia, Pennsylvania, in March. The event was sold out and attendance was oversubscribed. Attendees came from 23 states and as far away as Washington, Montana, and Florida to hear speakers cover such topics as "Marketing EB-5 Projects in China and India" and "EB-5 Compliance: Preparing for the I-829 and I-924A filings."

Jelle Kroes was invited to a ceremony on March 4, 2015, for the presentation of the first-ever start-up visa to be granted in the Netherlands. At the offices of The Expatcenter Amsterdam, the State Secretary of Justice Fred Teeven handed out the residence document in presence of the head of the Dutch immigration authority (IND), Rob van Lint, and deputy mayor of Amsterdam, Kajsa Ollongren. The proud recipient was the owner of start-up Med Canvas, Finn Hansen, a client of Kroes Advocaten.

Mr. Kroes presented "Labor Immigration Update" at the Eggens Institute for Postacademic Education, University of Amsterdam, on April 15, 2015, with T. de Lange, professor of migration law and administrative law there.

Mr. Kroes will present "Immigration Options for Entrepreneurs and Investors" at the Foundation for Immigration Law in Amsterdam on June 26, 2015, with M. van Riel, immigration attorney at Alkmaar.

Charles Kuck was quoted or mentioned in recent articles on the federal court order temporarily blocking some of President Obama's executive actions. The articles are available at Global Atlanta, Atlanta Journal Constitution and Epoch Times.

Mr. Kuck is the attorney for 39 plaintiffs in a case seeking in-state tuition for young immigrants in Georgia without legal status. The Georgia Court of Appeals rejected an appeal on March 19, 2015. Mr. Kuck said he would appeal to the Georgia Supreme Court. In a statement, he said, "The day that residents of Georgia cannot seek redress in court for the state's action against them is a sad day for all Georgians. We will appeal this decision and continue our fight for tuition equity on all available fronts." The article was published in the Atlanta Journal-Constitution.

Mr. Kuck was quoted in an article in Quartz on March 25, 2015, noting that U.S. Immigration and Customs Enforcement has raised bond prices and instituted no-bond policies at some detention centers. "What we're missing here is the little bit of mercy that always must come with justice to make the laws just." The article, "U.S. Promised To Deport Felons, Not Families—But That's Not What's Happening."

Vincent Lau has several upcoming speaking engagements:

  • May 15-16, 2015, Federal Bar Association's 2015 Immigration Law Conference, Panel 1: "Hot Topics in PERM"; Panel 2: "Advanced Employment-Based Permanent Residency"
  • June 17-19, 2015, 2015 AILA Annual Conference, "Fundamentals of PERM"

Robert F. Loughran spoke on February 23, 2015, at the "Welcoming City Forum" on "Implications of President Barack Obama's Executive Action." The presentation, held in Austin, Texas, was for both employers and employees. This forum was intended to formalize the city of Austin's commitment to being a welcoming, immigrant-friendly community and identify resources to address this goal. FOR MORE ON AUSTIN'S WELCOMING CITY INITIATIVE

Mr. Loughran presented on the effects of President Obama's executive actions on Forms I-9 and E-Verify, at the Foster Spring 2015 Immigration Update Seminars in San Antonio and Austin, Texas. His panel also discussed details of the Deferred Action for Parental Accountability (DAPA) program and the newly expanded Deferred Action for Childhood Arrivals (DACA) program, as well as Former Texas Governor Rick Perry's RP80 executive order mandating E-Verify for certain state agencies and their contractors.

Mr. Loughran provided expert testimony before the Texas Senate against potential anti-immigration bills in the current legislative session. Mr. Loughran's appearance came at the request of the Immigration Task Force of the Greater Houston Partnership.

Mr. Loughran testified before the Texas Senate Subcommittee on Border Security against a proposed repeal of the DREAM Tuition Act in Texas. The legislation, originally passed in 2001 and subsequently copied by 16 other progressive states, allows students who are residents for three years in the state of Texas to pay in-state tuition at public universities in Texas without regard to their immigration status. Video of his testimony is available at https://www.youtube.com/watch?v=AeTF3vcZC1w.

Mr. Loughran appeared on Austin's KEYE ABC affiliate to speak about the impact of "Sanctuary City" legislation.

Mr. Loughran presented Executive Actions on Immigration on February 4, 2015, as part of the Greater Houston Partnership's Continuing Education Series. For more information.

Sharon Mehlman and Cyrus Mehta presented at the American Immigration Lawyers Association's Midwest Regional Conference in Chicago on March 9, 2015. Ms. Mehlman spoke on "Update on DOL and ICE Compliance and Audit Issues." Mr. Mehta spoke on "Alternatives to the H-1B."

Mr. Mehta has authored or co-authored several new blog entries. "New L-1B Visa Guidance: Will There Be Fewer Denials Or More Of The Same?" "The Reason for L-1B Denial Rates Being Higher for Indian Nationals" "Every Country Except The Philippines: New Developments In Opt Out Provision In The Child Status Protection Act" "Who is 'Lawfully Present' Under the Affordable Care Act?" "Myth or Reality: Is the DHS Truly Serious About Visa Modernization for the 21st Century?"

Mr. Mehta has had several recent speaking engagements:

  • Speaker, "Immigration Executive Action and LGBT Americans/South Asians—What's Good, What's Left Out, And Our Next Steps," National Queer Asian Pacific Islander Alliance, New York City, February 12, 2015.
  • Plenary Session—"Overview of Recent Developments in Immigration Law" and Discussion Leader, "Life With No H-1B Visa," 36th Annual Immigration Law Update South Beach, American Immigration Lawyers Association (AILA) South Florida Chapter, February 5 and 6, 2015.Speaker, "Discussion of Ethics and President Obama's Immigration Accountability Executive Action," Ethics 101 CLE, AILA-New York Chapter, January 21, 2015.

Mr. Mehta was interviewed on BBC World News about President Obama's executive actions on immigration.

Several new blog entries by Cora-Ann v. Pestaina were added to Mr. Mehta's blog.  "BALCA Says Economic Benefits Should Be Listed in PERM Recruitment" "The AAO on H-1B Visa Credential Evaluations and the 'Three-for-One' Rule"

David Isaacson, an associate of Cyrus Mehta, recently published a new blog entry, "Ignoring the Elephant in the Room: Initial Reaction to Judge Hanen's Decision Enjoining DAPA and Expanded DACA"

Angelo Paparelli spoke on "What's New in EB-5 Practice" at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. MORE INFORMATION

Mr. Paparelli has published a new blog post. "Immigration Howling, Hope, Hype and Hodgepodge: USCIS's New L-1B Memo"

Mr. Paparelli was quoted by the Wall Street Journal on April 1, 2015, in "Visa Demand for High-Skilled Foreigners Is Likely To Prompt Lottery." He noted that "[t]he chances of being selected [in the H-1B lottery] are reduced further because demand has so increased."

Mr. Paparelli spoke at NES Financial's EB-5 Innovation Summit in Los Angeles, California, on March 10, 2015. FOR MORE INFORMATION

Mr. Paparelli spoke on "No One Said Green Fees Were Cheap—EB-5 Challenges and Recent Trends" at the 2015 AILA Southern California Winter CLE on February 27, 2015.

Mr. Paparelli has published a new blog entry on crowd-sourcing in immigration, "Immigration on a Clean Slate: Game-Changing Proposals on Visa Modernization"

Mr. Paparelli was quoted in a Law360.com article, "DHS Deputy Accused of Playing Favorites in EB-5 Program," published on March 24, 2015. In reference to the Office of Inspector General's investigation into allegations that Deputy Secretary of Homeland Security Alejandro Mayorkas had exerted improper influence on EB-5 application processing, Mr. Paparelli said he believed that Mr. Mayorkas' character was being "unfairly impugned" and that Mr. Mayorkas is of "the highest integrity." Mr. Paparelli noted that during Mr. Mayorkas' tenure at USCIS, he made "significant strides in many, many different program areas." Mr. Paparelli said that "grousers" are "trying to make something where I believe nothing exists," and that there were political motivations at play. The article is available by registering HERE.

Mr. Paparelli was quoted in "Immigration Executive Actions An Ethical Minefield for Attys," published on March 16, 2015, in Law360. He noted that determining whether a consultation before enactment of an executive action is advisable includes a judgment about the individual client's capabilities and needs. "If I'm dealing with a high-net-worth individual that can afford to spend a lot of time gazing into the immigration crystal ball, I don't think there should be limitations. Then again, if you're spending someone's entire life savings and now they can't afford the benefit, you're going to be looked at with a jaundiced eye." He also noted the potential Catch-22 if an attorney represents both an employer and an individual when there may be conflicts. "I endeavor to represent only one party, because the potential for harm if a lawyer is caught in the crossfire of a major dispute is great." In the employment context, Mr. Paparelli says he lets the individual worker know that he only represents the company, "which has agreed to pay my fees and provide immigration support as a fringe benefit, but not a legal service."

Stephen Yale-Loehr was quoted by McClatchy Washington Bureau in "Asylum for Homeschooling Enters Immigration Debate," published on April 8, 2015. Mr. Yale-Loehr questioned whether homeschooling bans rise to the level of persecution required by asylum law. "Most courts have defined persecution as being something pretty significant. Generally, it's hard to win asylum and they don't want any decisions to make it seem easier to get asylum," he noted.

Mr. Yale-Loehr spoke at a symposium, "Pluralism in Progress: Immigration Reform in the 21st Century," presented on April 10, 2015, by the Spectemur Agendo Foundation, the Beta Charge of Theta Delta Chi, and the Cornell University International Student Union. MORE INFORMATION

Mr. Yale-Loehr was interviewed by Law360 on April 3, 2015, in "Q&A With Cornell Law School's Stephen Yale-Loehr." The article is available via registration.

Mr. Yale-Loehr was quoted in Politico.com on April 2, 2015, in "Touting Connections, Hillary Clinton's Brother Takes on Philly Project." The article discusses the EB-5 program. "From a marketing perspective, people think because a politician is involved, at least in China they think somehow it's a better project or it's got more name recognition," he noted.

Mr. Yale-Loehr was quoted in the Wall Street Journal in an article about a federal court blocking the United States from detaining some asylum seekers.

Mr. Yale-Loehr wrote a blog entry summarizing a recent USCIS conference call on EB-5 source of funds issues.

Mr. Yale-Loehr was quoted in Law360.com on March 3, 2015, in "3 Tips To Avoid Screwing Up Your H-1B Application." Among other things, he noted that with the heavy demand for H-1B visas, it is best to submit an LCA for DOL certification in mid-March at the latest.

Mr. Yale-Loehr was quoted in Politifact.com on March 5, 2015, in "Federal Judge Called Obama Immigration Action 'Unconstitutional'." He noted that "[a]ny party can raise an alleged constitutional violation. Only when the Supreme Court rules on the executive action's constitutionality will that issue be resolved once and for all."

Mr. Yale-Loehr was quoted in the Atlanta Journal-Constitution on March 5, 2015, in "Congressman Collins Accuses Obama of Course Change on Immigration." Noting that deferred action doesn't change the law, he said, "Most legal scholars believe that these executive actions fall within the limits; they do not exceed them."

Mr. Yale-Loehr was quoted by the Associated Press in an article about venue shopping in immigration cases. The article was picked up by many newspapers, including SFGate on March 8, 2015. In "Immigration Ruling Shows Lawyers Playing Venue Shopping Odds," he said, "Everybody does this to the extent they can."

Mr. Yale-Loehr was quoted in The New Indian Express on February 15, 2015, in an article about green cards and the diversity visa lottery, "The Green Signal for a New Life in the Land of Opportunity." Mr. Yale-Loehr said, "A lottery is not a good way to organize an immigration system. It doesn’t strengthen family bonds, it is not conducive to our economic interests and it doesn’t rescue any refugees. Congress should abolish the program."

Mr. Yale-Loehr recently authored "What EB-5 Investors Need To Know About the CSPA," which was published in Bender's Immigration Bulletin, available by subscription to LexisNexis.

Mr. Yale-Loehr was quoted in the following articles about the district court ruling temporarily blocking some of the Obama administration's recent executive actions on immigration:

Mr. Yale-Loehr and H. Ronald Klasko will speak at an EB-5 Innovation Summit on February 24, 2015, in New York City sponsored by NES Financial. FOR MORE INFORMATION

 
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